Date: 19981130
Docket: IMM-5253-97
BETWEEN:
DOUES ABDELHAR
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] The hearing of the application for judicial review was held on Wednesday, October 21, 1998.
[2] On that date at the scheduled time, neither the applicant nor his solicitor, Marie-José Blain, was present at the hearing.
[3] On October 30, 1998, the undersigned judge made a notice in accordance with Rule 404(2) of the Federal Court Rules, 1998, requiring Marie-José Blain, counsel for the applicant, to make representations either in writing or by appearing in person before the Court on November 20, 1998, at the Federal Court of Canada, 90 Sparks Street, 7th floor, Ottawa, Ontario, to explain why she should not be required to personally pay costs set at $1,000, as a result of her conduct in failing to appear, without good cause, to represent her client, the applicant, in the instant proceeding, on Wednesday, October 21, 1998, at 11:30, before the Federal Court of Canada, 30 McGill Street, Montréal, Quebec.
[4] Marie-José Blain, counsel for the applicant, filed written representations dated November 17, 1998, including three detailed affidavits: those of Marie-José Blain, her partner, Jean-François Fiset, and her secretary, Sylvie Giroux.
[5] Also included with the written representations were two letters addressed to the plaintiff, Abdelhar Doues, one dated September 23, 1998 and the other dated October 2, 1998, reminding him that the hearing had been set for October 21, 1998 and that if he did not contact his solicitor, she would have choice but to withdraw before the Federal Court.
[6] It appears from the written representations that Ms. Blain was out of the country on vacation from October 3 to 18, 1998, and that she had asked her partner, Jean-François Fiset: [TRANSLATION] "to represent me on October 21, 1998, as I was on vacation during the weeks preceding the hearing and I wanted the case to be prepared in a conscientious way. As I had entrusted the file to Mr. Fiset, I did not note the appointment before this Honourable Court in my agenda".
[7] It appears that as he had had no news from the client, Mr. Fiset spoke to his secretary [TRANSLATION] "to see whether she had sent the letter to the Federal Court file, to which my secretary replied in the affirmative as Mr. Doues had been served with our letter dated October 5, 1998 by bailiff. However, Mr. Fiset was referring to the motion for removal from the record and my secretary to the letter sent by bailiff. Unfortunately, it appears from their supporting affidavits that there was a misunderstanding between them."
[8] I find it difficult to understand why a secretary who was asked [TRANSLATION] "whether she had sent the letter" should have understood that she was being asked whether a motion for removal from the record had been sent, as such a motion had never been filed or served in the instant case.
[9] Far from indicating that the file was attended to, the fact that a lawyer asked his secretary a question concerning the sending of a letter and drew conclusions about the service of a motion for removal from the record without even looking at the file or verifying whether the motion had in fact been drawn up, whether the affidavits in the file had in fact been prepared and signed, whether they had been served within the time allowed and whether the document had been filed in the Court, tends instead to indicate counsel"s carelessness in handling this file.
[10] In fact, one expects that a solicitor who is responsible for a file, especially one who is standing in for his or her partner, will take the time at least to verify whether all of the pleadings are in order in the days prior to a hearing date before the Federal Court of Canada.
[11] I also find it difficult to understand how neither solicitor returned the Registrar"s call on the day of the hearing.
[12] I accordingly find that the explanations provided do not justify the absence of one or other of the solicitors from the Court on October 21, 1998, and that there is both personal responsibility and responsibility through the actions of a servant or agent in this case.
[13] For these reasons, the Court orders Marie-José Blain to personally pay costs set at $1,000.
Pierre Blais
Judge
OTTAWA, ONTARIO
November 30, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-5253-97
STYLE OF CAUSE: Doues Abdelhar - and -
Minister of Citizenship and Immigration
NOTICE UNDER RULE 404(2), FEDERAL COURT RULES, 1998, WITHOUT APPEARANCE OF THE APPLICANT
REASONS FOR ORDER AND ORDER OF BLAIS J.
DATED NOVEMBER 30, 1998
WRITTEN REPRESENTATIONS BY:
Marie-José Blain
FOR THE APPLICANT
SOLICITORS OR RECORD:
Blain, Fiset et Associés
Montréal, Quebec
FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada